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Prior to the 1980s and the passage of environmental legislation--particularly the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) governing environmental cleanup--Department of Defense (DOD) activities contaminated millions of acres of soil and water on and near DOD sites. The Environmental Protection Agency (EPA), which enforces CERCLA, places the most contaminated sites on its National Priorities List (NPL) and requires that they be cleaned up in accordance with CERCLA. EPA has placed 140 DOD sites on the NPL. Disputes have recently arisen between EPA and DOD on agreements to clean up some of these sites. In addition, most sites were placed on the NPL before 1991; since fiscal year 2000, EPA has added five DOD sites. In this context, we agreed to determine (1) the extent of EPA's oversight during assessment and cleanup at DOD sites and (2) why EPA has proposed fewer DOD sites for the NPL since the early 1990s. GAO interviewed officials at EPA and DOD and reviewed site file documentation at four EPA regions.

EPA evaluates DOD's preliminary assessments of contaminated DOD sites but has little to no oversight of the cleanup of the majority of these sites because most are not on the NPL. Of the 985 DOD sites requiring cleanup of hazardous substances, EPA has oversight authority of the 140 on the NPL; the remaining 845 non-NPL sites are overseen by other cleanup authorities--usually the states. Our review of 389 non-NPL DOD sites showed that EPA decided not to list 56 percent because it determined the condition of the sites did not satisfy the criteria for listing or because it deferred the sites to other programs, most often the Resource Conservation and Recovery Act--another federal statute that governs activities involving hazardous waste. However, EPA regional officials were unable to provide a rationale for not listing the remaining 44 percent because site files documenting EPA's decisions were missing or inconclusive. In addition, EPA has agreements with DOD for cleaning up 129 of the 140 NPL sites and is generally satisfied with the cleanup of these sites. However, DOD does not have agreements for the remaining 11 sites, even though they are required under CERCLA. It was not until more than 10 years after these sites were placed on the NPL that EPA, in 2007, pursued enforcement action against DOD by issuing administrative orders at 4 of the 11 sites. Since the mid-1990s, EPA has placed fewer DOD sites on the NPL than in previous years for three key reasons. First, EPA does not generally list DOD sites that are being addressed under other federal or state programs to avoid duplication. Second, DOD and EPA officials told us that, because DOD has been identifying and cleaning up hazardous releases for more than two decades, and improved its management of waste generated during its ongoing operations, DOD has discovered fewer hazardous substance releases in recent years, making fewer sites available for listing. Third, in a few instances, state officials or others have objected to EPA's proposal to list contaminated DOD sites, and EPA has usually declined to proceed further. For example, in five instances EPA proposed contaminated DOD sites for the NPL that were not ultimately placed on the list. At four of these sites, the states' governors did not support listing, citing the perceived stigma of inclusion on the NPL and potential adverse economic effect. EPA did not list the fifth site because, according to EPA regional officials, DOD objected and appealed to the Office of Management and Budget, which recommended deferring this listing for 6 months to give DOD time to address personnel and contractor changes and demonstrate remediation progress. EPA officials recently told us that cleanup has taken place at these sites and that it was unlikely or unclear whether they would qualify for placement on the NPL based on their current condition.

Matter for Congressional Consideration

Status: Closed - Not Implemented

Comments: As of December 2016, there has been no Congressional action on CERCLA Section 120.

Matter: Given the critical nature of Superfund cleanup for protecting public health, and the long-term commitment necessary to maintain strong environmental stewardship at federal facilities, Congress may wish to ensure accountability by DOD and EPA by raising concerns about the impasse between these federal agencies, if IAGS are not finalized within 60 days following issuance of this report. Specifically, Congress may wish to consider amending CERCLA Section 120 to authorize EPA to impose administrative penalties at federal facilities placed on the NPL that lack IAGs within the CERCLA-imposed deadline of 6 months after completion of the remedial investigation and feasibility study. This leverage could help EPA better satisfy its statutory responsibilities with agencies that are unwilling to enter into agreements where required under CERCLA Section 120. In addition, Congress may wish to consider amending Section 120 to authorize EPA to require agencies to complete preliminary assessments within specified time frames.

Recommendation for Executive Action

Status: Closed - Implemented

Comments: EPA established a record-keeping system, consistent across all regions, to document decisions regarding the proposal of DOD sites, and other federal sites, for inclusion or exclusion on the NPL. While GAO's recommendation was specific to DOD, EPA's system changes encompass all federal sites. Specifically, in December 2011, EPA's CERCLIS data system was updated to require users updating a sites' Site Assessment rationale to document whether or not further assessment is required to determine if the site belongs on the NPL and to incorporate an explanation in the Decision/Rationale field. Since this field, which was previously optional, is now required, EPA has created a means of tracking the basis of site assessment decisions consistent across all regions, which meets the intent of our recommendation. In addition, during FY 2012, EPA also culminated a two-year effort to determine the assessment and cleanup status of 514 federally owned sites which appeared to lack, or be missing, Site Assessment documentation. EPA has worked to address the backlog of previously undocumented site assessment decisions. As information is updated it is available on the FFSEP website at: http://www.epa.gov/fedfac/ffsep/

Recommendation: To facilitate congressional oversight of the Superfund program and provide greater transparency to the public on the cleanup of DOD sites, the Administrator of EPA should improve its record keeping in the following manner. Consistent with good management practices defined in EPA's Superfund program implementation manual and to ensure that meaningful data are available for the agency's reports to Congress, EPA should establish a record-keeping system, consistent across all regions, to accurately document EPA decisions regarding the proposal of DOD sites for inclusion or exclusion on the NPL and the basis for each decision.